Debate hard fought, but likely not over

SOUTH PORTLAND — During nearly three hours of public comment Monday, speaker after speaker before the South Portland City Council called the imminent passage of a ban on diluted bitumen, “historic.”

But a press release issued by the Working Waterfront Coalition just 10 minutes after the council’s 6-1 vote made it clear the final chapter of that history has yet to be written.

“By passing the so-called ‘Clear Skies Ordinance’ and brazenly overturning the will of local voters, the South Portland City Council committed this community to continued division and discord,” said Jamie Py, president of the Maine Energy Marketers Association, in the release.

“The men and women of the Working Waterfront Coalition – whose livelihoods were treated as casual collateral damage throughout this process – will evaluate all political and legal means available to us to overturn this ordinance,” Py said. “The fight is not over.”

Although towns from Casco to the Vermont border with Canada have adopted resolutions opposing the shipment of diluted bitumen along the 236-mile Portland Pipe Line system through their borders, South Portland is believed to be the first to enact a zoning ordinance that outlaws the product, more popularly known as “tar sands.” Monday’s action, opposed only by Councilor Michael Pock, has drawn national interest, including from the Los Angeles Times and a Nebraska group fighting construction of the XL Keystone pipeline.

The new zoning regulation for the Park City – so-called for its 15 public green spaces, including scenic Bug Light Park next to, and largely owned by PPL — bans bulk loading of all crude oil onto ships. It also bans construction of infrastructure needed for that purpose. It will go into effect in 20 days.

South Portland’s City Charter gives any opposing force that long to submit a petition to overturn the vote. Such a petition must be signed by 5 percent of registered voters — about 950 people.

Because a successful signature drive will delay implementation of the new zoning ordinance until a referendum vote can be held, the council unanimously agreed Monday to table a decision on ending a moratorium on relevant shorefront construction, in place since December. It will now take up that issue on Sept. 3, allowing time to see if a challenge is mounted.

However, even absent a repeal attempt, a new ordinance could be petitioned at any time to replace the zoning rules enacted Monday. Additionally, the American Petroleum Institute famously insinuated in a Dec. 3, 2013 letter to the city that any effort to restrict the flow of oil, “would have strong legal challenges.”

“Such a ban is preempted by state and federal law,” said Matthew Manahan, attorney for Portland Pipe Line Corp., in a July 11 letter to the planning board.

Still, the possibility of a lawsuit did not stop Protect South Portland from holding a celebratory press conference Tuesday morning at the Maine State Pier in Portland, using South Portland’s working waterfront as a backdrop. The grassroots activist group arose in June 2012 to block tar sands from ever entering South Portland.

After several months of regional handwringing over a November 2012 permit filing by Canadian oil giant Embridge, which seemed to signal a desire to ship tar sands from Alberta, through Montreal, to South Portland, activists banded to petition a Waterfront Protection Ordinance. That proposal, which would have banned expansion of petroleum storage or distribution facilities in South Portland’s shoreland and commercial zones, ultimately failed at the polls in November 2013. However, given the closeness of the vote – a 192-vote margin out of 8,714 ballots cast – the council created a three-person committee to take a second pass at the initiative and come up with a way to achieve the same ends.

Although Py disparaged the committee’s efforts, saying it “deliberately (bypassed) any fact-based analysis with regulators and industry experts to assess whether such a ban was even necessary,” the end result brought a sustained, and raucous, standing ovation following Monday’s council vote.

“We may be a small city, but, boy, we’ve done a big thing,” said Protect South Portland Spokesman Mary-Jane Ferrier. “We are absolutely thrilled, relieved and exhausted. Of course, we know it may not be over yet, and we’re committed to defend this victory from oil industry attacks.”

“Last night’s victory shows that no one is above the democratic process, and when out-of-state oil interests try to throw their weight around to pollute a Maine town, we know how to say ‘No,’” said Dylan Voorhees, clean energy director at the Natural Resources Council of Maine.

“More broadly, communities everywhere are waking up to the fact that tar sands are a dirty, toxic energy source,” Voorhees said.

Tar sands detractors point to a March 2013 pipeline break in Mayflower, Arkansas, and a 2010 leak of bituminous oil from a pipeline near the Kalamazoo River in Michigan. The former caused the evacuation of 22 homes, while the latter reportedly raised benzene gas levels in the air to 15,000 parts per billion, far above the 500 parts per billion designated as a safe level by the U.S. National Institute for Occupational Safety and Health.

Fear of a similar spill along the 236-mile pipeline from Montreal to South Portland has fueled the fight to ban tar sands from being shipped through the decades-old system. Many environmental activists have claimed tar sands is more corrosive than lighter crude oils, making pipeline failures more likely. However, a June 25, 2013 report sponsored by the Pipeline and Hazardous Materials Safety Administration, a division of the U.S. Department of Transportation, found tar sands “has physical and chemical properties within the range of other crude oils” and that, “no aspect of its transportation by pipeline would make it more likely than other crude oils to cause accidental release.”

Supporters of the Clear Skies Ordinance also cite fears of air pollution that would presumably be caused by any vapor combustion units built to burn off the chemicals added to diluted bitumen. Benzine is a particular concern, and many people at Monday’s meeting sided with a pristine environment over the jobs that industry leaders say could be lost as a result of Monday’s vote.

“Pollution is an increasing issue in maintaining and attracting a workforce that has options and can leave,” said Smith Street resident Scott Duncan, who pointed to the number of Southern Maine Community College graduates who already take their degrees out of state.

“You don’t have jobs on a dead planet,” agreed Cokie Giles, president of the Maine State Nurses Association.

A rallying cry for passage of the Clear Skies Ordinance has been that because no company, including Portland Pipe Line, currently loads crude oil onto ships, there is no harm done to current business. Pipeline executives have said repeatedly that the company “has no plans” to repurpose one of its three lines, currently unused, to import crude from Montreal instead of sending product north, as it has since World War II, when a Nazi blockade of the St. Lawrence River stopped up the country’s oil production.

Although Embridge won approval from the Canadian government this past March to allow the first leg of pipeline journey from Alberta to Montreal, Pipeline Vice President Tom Hardison continues to say that his company only wants to preserve the ability to use its facilities to import oil, as well as export it, if asked.

Even so, the activist argument that jobs are not at stake rang hollow with Brian Fournier, president of Portland Tugboat LLC.

“To state that this ordinance would have no impact on the working waterfront is completely wrong,” he said. “You’d have to tell that to the people I’d have to give pink slips to.”

Burt Russell, vice president of operations at Sprague Energy, has often told of how his company began in the 1870s by shipping whale oil. Although Sprague does not ship crude oil out of South Portland, it wants to preserve its ability to do so in the future, if market conditions drive a change in its business model, he said.

Michael J. Conathan, director of ocean policy at the Center for American Progress, who helped write the Clear Skies Ordinance, has said the draft committee chose to target all crude oil, not just tar sands, to avoid a specific regulation that could be circumnavigated by a change in the product’s chemical composition. He has also said that all South Portland waterfront zones were included to keep Portland Pipeline from partnering with any of the five oil terminals in the city, including Sprague, to move tar sands through their systems.

However, on Monday, Russell faulted Conathan’s group, saying it “did not include a fact-based risk assessment,” in its work.

“It did nothing to address the fears (of tar sands),” he said. “All you have to do is listen to the public testimony today and compare it to the testimony from a year ago. These people deserve answers. I’m concerned that it’s become OK to make policy based on politics and not on facts and science.”

Hardison echoed that sentiment, with some of the strongest language at Monday’s meeting, although his company has steadfastly refused to say what chemicals might be in the proprietary mixture added to tar sands.

“The biased process that led to its predetermined passage this evening has been slanted against the entire working waterfront since day one,” he said. “Tonight’s vote against jobs, energy and the waterfront is the culmination of a rush to judgment led by councilors over the past several months that has ignored plain science in favor of fear.”

That fear has, in part, fueled a growing divide in South Portland. While Protect South Portland volunteer Crystal Goodrich said Tuesday that, “What’s really amazing about this whole process is how much it has brought the community together,” not all residents feel that way.

“What I’ve seen over the past year makes me scared for my community,” said Highland Avenue resident Kathy DiPhilippo. “This is not the South Portland I grew up in.” DiPhilippo is director of South Portland Historical Society and writes a column for the Sentry.

Already, battle lines are being drawn up for what is expected to be the next skirmish in the ongoing tar sands war.

Portland Pipeline has backing from its Working Waterfront Coalition and the American Petroleum Institute. On the other side, South Portland Mayor Jerry Jalbert said Tuesday the city will solicit U.S. and Canadian environmental groups to help fund any lawsuit that stems from Monday’s vote.

Already, the Conservation Law Foundation has pledged to join that fight.

“Yesterday South Portland’s City Council exercised the right that communities across Maine have to protect – the health and quality of life for its citizens,” said Foundation staff attorney Ivy Fignoca. “We would hope that the American Petroleum Institute and its members would respect that but should they decide to bring lawsuits against the Clear Skies Ordinance and force the city to incur the associated costs in time and money, the Conservation Law Foundation will join in defending the ordinance.”